Nov 302013

David Hill has a lot to say about the realities of the freelancer life and getting paid over on Google+ from his perspective as a freelancer.

This is me talking from the publisher perspective.

Pay on Publication contracts need to die a fiery death, folks. These are contracts that say to a writer, editor, artist, graphic designer, or other creative worker on a game project that they won’t get paid until the project they’re working on sees publication.

This is utter crap.

As a publisher, there are a few things you’re bringing to the picture:

  • Overall vision
  • Implementation coordination
  • Connections and clout for publication and distribution
  • Sales and marketing
  • Funding

All of those go into the activity of actual publication. They are your goddamn responsibility.

The creative folk you hire to do work that fits your vision do not carry any of this. Their job is to produce components to spec that you can get assembled into a final sellable thing. Once that work gets into your hands, they’ve done 100% of what you’ve asked them to do.

If, in the face of that, you ask them to wait to get paid until publication, you’re asking them to wait to get paid until you can get your shit together. They have no control over your actual ability to get to that publication date. You’re asking them to trust that you can do so at best possible speed. You’re asking them to extend you a loan (think about how ridiculous that is) equal to the full value of their work at 0% interest for an indeterminate amount of time.

This is an incredibly dishonest and shifty way to do the work of being a publisher. It’s also, frankly, just bad business. It gives you a chance to fail in a way that affects folks’ livelihoods. Those failures, even if they happen for good reasons, become a reputation. If you’re eager to make a lifestyle out of publishing, your reputation is your make or break asset. While there will always be new, fresh, gullible talent to come around to accept these sorts of terms from folks like you, you’re going to end up hurting the experienced folks (which hurts all of us, as it can end up ejecting them from the talent pool for good) and perpetually saddling yourself only with inexerpienced talent. And worst of all, you’ll be their first impression of how the industry operates.

Bottom line: If as a publisher you don’t have the money already to pay someone for work when they finish doing it, you should not be hiring them in the first place.

Publishing can be a juggling act but your funding should not be. See the list of bullets up at the top of this post. It’s your wheelhouse. It’s your responsibility. It’s your burden. It’s the service you’re providing to creative folk. You shouldn’t provide those folks less value than they can provide themselves as self-publishers. Those bullets are how you offer added value and none of them are optional.

At Evil Hat we pay on the accepted delivery of the work. Because that’s the end of the freelancer’s responsibility. Where there’s wiggle room, it’s in how that “accepted delivery” gets defined. Maybe it means a writer doesn’t get paid until after the editing and revision cycle is completed. That’s fair: the editor can be seen as your mechanism for determining the acceptability of the supplied work.

But however you define it, it sure as shit shouldn’t be “until you get off your ass and get the thing published”.


  38 Responses to “Pay on Publication Needs to Die: A Rant”

  1. I’ve seen some discussion elsewhere bring up the idea that royalties = an acceptable way that payment occurs on or after publication. That’s only sort of acceptable, for me; royalties by themselves are potentially a worse mode of payment than (prompt) payment on publication. A royalty stream is nice and all, but actually getting paid enough money to equal the value of what you’ve created has to be the bedrock. In other words: sure, do royalties if you want their upside, but for gods’ sakes pay an advance against those royalties no later than upon publication, but preferably at the time of delivery. A royalty structure might reduce the amount you need to pay at that milestone, but you should honestly still be paying folks something regardless of whether or not you screw the pooch on selling the product that results.

    • I suspect that you’re referring to my comment on G+, Fred. I meant royalties _in addition to_ the original payment. I reckon that if a product does well it’s largely because of the writing (or art, or what have you), and I’d want the writer or artist to get a piece of that.

      What I had in mind is something like “appropriate payment for work required, and if it takes off you get more”, not “take less pay unless it does well”.

    • As I understand it, royalties are significantly more complicated from a
      tax/accounting perspective, as well, so it might not actually make it easier or cheaper for a tiny publisher to go that route. How much does the shoestringer enjoy filling out 1099-MISCs?

      Work for hire doesn’t provide a residual income stream, but the upside should be a predictable sum that you can access sooner rather than later. While “income forever” sounds awesome on paper, it more often means “nothing for months followed by a flurry/storm/blizzard of cash soon after publication, and then a tiny trickle that eventually dries up.” There is a tendency in the industry to create the base game, create expansions for several years, and then release a new edition of the base game. So a freelancer receiving royalties can’t expect “income forever” the way a novelist might (and even novels can go out of print), because eventually there will be a new edition and very few people will buy the edition s/he worked on (if it is available for sale at all). The question becomes “will I earn significantly more royalties than I would get if paid a per-word rate, and is it worth possibly waiting years to earn it?”

      The promise of royalties can make the freelancer more invested in the product’s success, sure, but so can a client who pays him/her fairly and on time. Because then the success of that product makes it more likely that the freelancer will be able to get more work from a client with a track record of paying fairly and on time.

    • Besides the limited life of a product, there’s no way to know if the royalty/commission contracts are even being honored for the that product’s life, especially if the freelancer parts ways with the company they’d done work for.

    • Ah yes. There is that, as well. If you can’t always trust a publisher to pay the rate you’re owed, much less on time, how can you trust that they’ll pay you the agreed-upon royalty? It isn’t like they make their sales reports available to all their freelancers.

  2. I’m wondering, both as a freelancer and as an occasional publisher, if there’s a middle ground for some situations. What I arranged for Mythender’s cover was 40% upon approval of proof, and the rest within 30 days of publication. Given his situation of not even expecting to get paid for fan art, he was cool with it, but I did ask (and explain) rather than just say “this is how it is.”

    On the other hand, I have been screwed a bit by working on multiple-pass editing project where in between passes the author-publisher dropped off the face of the Earth. Because of that, I’m starting to add in a time-based kill clause, and expecting payment after every stage of the process.

    So, here’s what i’m wondering as a possible place that helps all ends out: if you (proverbial, not-Fred) need to pay upon publication (or within some time afterward), then you’d better be able to state your projected publication date. And if that’s the case, then make that date when the publication payment is based on, not just “upon publication.” Maybe you’d need a clause stating akin to “and if you turn it stuff late, that pushes forward the final payment date.” (Which, as with all “if you turn stuff in late” clauses, is really elective rather than guaranteed.)

    Which is to say: as a freelancer working for the you, if you tie payments to my milestones, then we’ve got that covered. And if you tie a payment to something that isn’t my personal milestone, base it on a date and not on your milestone. What do you think, Fred?

    • My concern ultimately comes down to the essential nature of contracts: they’re terms by which something of value is exchanged for something else of value.

      Say a writer creates written work which goes through editing (or doesn’t, whatever) and is deemed acceptable work product, and hands the publisher the final version of the file(s). The writer has given something of value to the publisher; if the publisher doesn’t pay at that point, has the publisher given anything of value back?

      Your X% upon approval, Y% delivered NET30 of publication + a firm “no later than Z date” clause would at least guarantee that a thing of value is given back by the publisher at the time the writing (or art or other work product) is turned over. That’s a lot more comfortable to me than scenarios where it’s all waiting until after the thing’s published — a sufficiently jaundiced view would say, hey, that means I know I’ll get my X%, and if I happen to get the Y% then that’s practically a bonus.

    • Oh, yeah, with trustworthy exceptions, I don’t work on purely publication anymore. A decent percentage on milestone delivery is one of my requirements. 🙂

    • Also, I weigh the publisher’s situation. For Kickstarters, where the funding is already there, I don’t do pay-on-publication. The money is already there to pay for the project, so on-pub reasoning doesn’t apply.

    • My preference has always been a percentage on acceptance of contract with the remainder upon completion and acceptance of the work. Apart from a signed agreement of work, when the publisher pays money up front, the freelancer has a tangible obligation to complete the work (and this can substitute for a kill fee, if one is not negotiated in the contract). When the freelancer’s work is accepted, the publisher has an obligation to complete payment.

      Unfortunately, only one of the clients in the gaming industry I’ve worked for has these terms. Outside the gaming industry, kill fees and partial up front payment seem to be more common.

    • Honestly I gotta wonder if that’s due to outside-gaming situations having fewer situations where the freelancer flakes out on the contract. I can certainly see how the flake factor would discourage game publishers from doing up front. I’ve felt burned by doing up-front payments about as often as it’s worked out just fine, when I’ve done them; 50% is not a good success rate.

    • Guarding myself against that scenario, with our first project, I paid 25% up front to five different artists because all but one was unknown to me (and I never ended up directly working with the one that wasn’t). Then once each of the was halfway through the work – a pre-established and agreed upon point – the individual got another 25%, and then when they were finished, we’d approved the final work, and they’d delivered the files, we paid the remaining 50% within 4-48 hours.

      Now that I know I can trust that they won’t flake out and that their work for us was as good if not even better than the work I’d seen that prompted me to contact each of them, they’ll get 50% up front and 50% upon delivery of final files. Any new artists and other talent will be started the same way the established artists did. When it came to our editors, I’d already worked with them elsewhere and knew their habits, so they started with the 50/50 arrangement.

  3. In my own contracts, I pay on receipt of an acceptable proof based on the payment amount/scheme outlined in the contract. Usually I pay on receipt, but my contracts give me a few weeks of “Wiggle room” to account for delays caused by communications issues, being away from my business (if someone decides to turn in their work while I’m on vacation), or money transfer times (if I need to add money to my Paypal account and have to wait for that to clear, for example). I rarely need the extra time, though, and usually pay on receipt.

  4. As a publisher, paying on delivery is more advantageous to me than waiting until publication. For one thing, I don’t have to try and rush publication and put out a sloppy product to make sure people get paid in a reasonable time frame. This means my contributors are always happy to keep doing more work before the last thing they did was published, because they’re getting paid. That’s probably the most important thing.

    Of less importance to them is the fact that it also makes book-keeping much easier for me.

  5. Here’s something worth noting: Go back ten years or so and pay-on-pub is pretty common. I’d bet most publishers who started ten years or more ago have practiced this and maybe still practice it as a matter-of-course.

    I’m advocating for changing that. There’s no (good) reason that should be the norm any longer. And more to the point freelancers shouldn’t be accepting contracts for work that ask them to take on the risks that are the publisher’s to carry.

    Evil Hat didn’t start ten years ago. We started in 2005. We’ve never offered pay-on-pub contracts (we’ve made many other kinds of mistakes — pay-on-pub wasn’t one of them). Before folks go and cry foul and hypocrisy and all that about us — remember that, and don’t assume. We came up in a different time, and I think it’d be smart of older publishers to recognize the need for change.

  6. I am inclined to cheer this! I have lived what you described. I was the inexperienced person entering the industry who accepted a contract to do work where I wouldn’t get paid until it was published. Little did I realize that even that wasn’t going to happen quite as described for a few reasons. To make matters worse, much of the work I did never has been published and likely never will be.

    The up side is that I learned a lot about the industry, including what I did and didn’t like. When I decided to start a business with my husband, it was with that experience in mind and led us to commit to paying talent as they do the work if it’s work on spec. All freelancers know exactly how much they are going to get for a project before they commit to it.

    Thanks for the rant!

  7. Yes, technically this sort of “pay when we feel like it” contract is illegal in my country (Australia). In Australia, you are required to pay people. This is also why we don’t tip waiters: your run a restaurant? You need to pay your waiters in exactly the same way that you need to pay your rent or power bill. It’s not a discretionary thing.

    • It’s illegal everywhere. Even up here in Canada, where waiters and alcohol servers get tipped, they also get a steady paycheck which is supplemented by their tips.

  8. Having had some frank conversations with small tabletop gaming publishers, I can tell you where I think this comes from.

    My impression is that most companies that pay on publication are running very small, risky operations. Typically, they don’t have the money to pay for several dozen or several hundred pieces of artwork at the same time when they are also paying for manufacturing. They could take a loan like a normal business, but their margins are often too small and their risk is too high. So the loan gets passed to the contract artists, who take it interest free in the form of delayed payment. I suspect that many companies which seem like big name brands in the tabletop gaming world would have gone out of business a long time ago if they all paid for their art on completion. It would only take a few under-performing products in a row to mount enough debt to sink some of these companies.

    Personally, I don’t like pay-on-pub. I think it sucks and wish it didn’t exist. But we’re talking about tugging on a wishbone here, someone gets the big side and someone gets the small side.

    • Yes. And the wrong folks are getting the small side.

    • That’s a pretty bold claim. I mean, the publishers are the side taking all the risk in this business.

      I’d be interested in hearing you elaborate on your statement. What makes artists entitled to get more then what they agreed to?

    • I think we each understood your metaphor differently. This is why metaphors are dangerous ways to make a point. 🙂

      I took “the small side” as “being the creative in a pay-on-publication deal”. It sounds like you think I’m talking about them needing to get more money. I’m not. I’m saying that they should get paid for their work once their responsibility to the project is discharged. That’s not “on publication”, that’s “on delivery”.

      A “pay on publication” deal is a case of the publisher putting some of its risk back on the creative. In THAT case, yeah, maybe the artist should get paid more, because there’s a solid chance they’ll get it much later than was promised, or not at all.

    • I think we are on the same page about much of this, but I want to expose a facet of this discussion that hasn’t been addressed.

      It’s not common for artists to consider is the health of the publishers. Especially since they shouldn’t have to. You can demand to be paid on delivery, but if they cannot do it without going bankrupt, you’ll never get it. And it’s not entirely their fault. No one will argue that artists are better served by being paid on publication but it’s safe to say that these practices exist for a reason other than greed.

      White Wolf engaged in low pay and pay-on-pub for years but that didn’t save them. They were the first freelance employer for hundreds of professional artists. Many of whom are rather well known today. But they were forced to sell the farm 6 years ago when they ran out of options. The loss of that company was a loss of an entry point into this industry for a whole crowd of aspiring artists.

      Since publishers will not open their books to show why pay-on-pub is necessary for some of them. It’s a difficult discussion to have. That may be the reason you don’t see many people disagreeing with your point of view.

    • … well, sure. But the *entire point* of my post is that if you’re a publisher and you’ve got to offload risk to your artists like that, you’re dreaming too big and it’s time to downsize.

      Publishers need to be competent and capitalized enough to get their stuff to market *after* paying the talent that made the products they intend to sell possible in the first place.

      Artists, writers, editors, etc, have no intrinsic burden to make a product work as a salable item past the point of producing the materials used to construct that contract to a spec and at a quality level found acceptable by the publisher. So don’t push your delivery problems onto their pocketbooks.

      That’s flat out unethical.

    • I think there is a lot of common ground between our thoughts on this issue. But I also think that you are other facts in play. This is an issue that is being dramatically effected by crowd-sourcing. That’s something that seems to have been very effective for Evil Hat but isn’t an option to some established publishers. Calling them dishonest without addressing the different way that you sell products seems overly simplified to me.

      I would have rather seen this issue in the light of the way crowd-sourcing games helps artists instead of making broad accusations about other publishers.

    • The way Evil Hat sells products doesn’t enter into it at all. If you look at the 8-year history of Evil Hat at this point, you’ll see that crowdfunding only occupies about 15% of that timeline (the last year and a half, ish). I would have said the same things I said in this post and these comments 2 or more years ago, when the difference (which is arguable; tons of established publishers are using crowdfunding) you’re citing wasn’t a factor for us at all.

      When we founded the company 8 years ago we started with a bank balance out of our own pockets of $10,000. We started out with sufficient capitalization to pay the folks who freelanced for us (mostly artists at the time) on delivery. That was 2005. Kickstarter didn’t exist yet, and wouldn’t for most of the half decade that followed.

    • The second and third paragraphs of this reply called out to me. We are running a small operation, but it has always been a guiding principle of our team to give clear, concise contracts, and *never* do pay-on-publication. This might be because we are artists, as well, and so we understand the inherent shittiness of such deals.

      Maybe a creative investment deal would work for your brother who is an artist or something like that. But, really, it’s common sense to not do this crap. It’s almost remarkable that you even have to write this kind of post, but I do believe that it’s totally necessary. When we started hiring freelancers, we actually received specific *comments* on how professionally we handled everything. They told us some wacky horror stories. Having our freelancers happy and paid for the work they do makes for a happier company, generally, and arguably a more productive one — even if we do have to take baby steps to accomplish our overall goal.

      Thanks for posting, and here’s to the death of p-o-p!

    • Exactly, as an artist our product isn’t the game manual itself, our product is the image produced for the manual. A publisher is buying the image, just as they will eventually hope a customer buys the game.

    • Publishers taking all the risk? As an artist I will say that time spent on a Pay-On-Pub deal is a risk. If they decide never to pub, and I could have gotten a time sensitive pay on delivery gig instead, I took quite a risk on my work. This is our rent, our groceries we are risking. Not whether or not a book gets printed on time.

    • What Lucas says is pretty much exactly why I don’t think it’s particularly ethical to ask the creative to take on additional risk by deferring payment until the publisher gets around to publishing the final product.

    • There aren’t a lot of unknowns when it comes to accepting a pay-on-pub contract since the contract clearly states about how late they are paying. Anyone depending on it for rent or groceries should probably reconsider their financial plan. Afterall, life comes first. If you rely on freelance to pay your bills, don’t sign a bunch of pay-on-pub deals.

    • I don’t, but to say the publisher is the only one taking any risk is misleading. And being paid for work done is not asking for more than agreed. If something goes wrong on the publisher’s end the artist never gets paid for work completed.

    • Okay, I’m clear that you have no empathy for the freelancer’s side of the equation. You’ve taken great pains to demonstrate that. This response also suggests that you believe all publishers will publish promptly and inevitably, so that the payment on publication is a 100% guarantee so it’s really just a matter of timing.

      There are innumerable anecdotes among the freelancing population that makes it clear that’s a complete fiction, but assuming it’s not, do you have something new to add beyond what you’ve already said about that in this discussion, or are you going to keep on stating your position repeatedly?

      I’m getting pretty fed up with the repetition. I’ve already seen it. You’re clearly unconvinced by anything that’s getting said here, and you’re not convincing us either, so this branch of things is at an impasse. Further revolution around the same point isn’t going to help anything.

    • I agree that we are at an impasse. This discussion doesn’t seem to be
      nesting replies in the order that they are meant to be read. My previous
      reply was intended for Lucas.

      One final note. I am a freelancer. I’ve signed these contracts and gotten paid 18 months late for work that I put my life on hold to do. In fact, I have no income outside of freelance at this very moment. Which is the last thing I want to add, in order to frame my previous comments.

    • I really don’t get why you think you owe publishers more than you’re already giving them when you put your life on hold to do the work. 18 months late is downright criminal.

      Speaking as a publisher. 🙂

  9. legally speaking, pay on publication could create a situation for content creators where there lose rights to their works but never get paid for it. A promise to pay when a contingent condition is satisfief, does create enough “consideration” to make a binding contract. Further, the general rule is when an artist creates “work for hire” the copyrigjt goes to the person doing the hiring. Now, unless you put some sort of time limitation in your contract that reverts the rights if publication does not occur by X date, they have your work, and the rights to it, indefinitely and have to pay you nothing. I understand young artists are desperate for a break, but signing a contract like that is a horrible idea.

  10. Waiting a long time for payment is annoying. But pay on publication isn’t without its reasons. This article shows the frustration it causes artists, but fails to address the reasons behind it. It’s hard to change things when you don’t know why something exists.

    In the case of periodicals, it’s simply a matter of book keeping. They pay all the vendors and invoices for each issue/month all at the same time, so they can keep track of cost/revenue. This helps them with budgeting the next year.

    This means if your contribution gets pushed to a later issue, then you are going to get paid later. To complicate the book keeping process is to ask someone to do a bunch of extra work that really isn’t needed. It’s like asking artists to work for free. If you don’t like working for free, then don’t ask someone else to have to do more work than what they are paid for.

    You have to remember, you aren’t the only vendor/invoice they have to deal with. There are hundreds to thousands of invoices, depending on the publication.

    Other publishing companies have different reasons. First, bigger companies tend to pay 30-60 from when invoice is submitted to accounting, you mostly find pay on publication with smaller companies.

    The simple reason is that often, a project can be canceled, and the company can’t afford to pay for stuff they don’t end up using. That’s not saying they don’t have the money for the project. They just don’t have the financial margin that bigger companies have for failed development.

    Does that mean if a project gets canceled during development you might not get paid? It does, unless you make sure to include in the contract terms kill fees, or paid in full if completed and not used. The two things are different. Remember, in most cases, they aren’t buying the rights to the art, or paying you to make art. They are paying you to license the use of an image.

    How you make, or the time required to make that image is your responsibility. Not their’s. In the list above about the responsibilities of the publisher, I’ve never had a publisher expect me to consider any of those. When I read this, I found that list confusing, since it’s somewhat disconnected to why pay on publication exists.

    Do some companies pay after publication, because they are waiting for the first round of sales income? Yes. If you know that’s how a company works, I would really consider if you should work for them. If sales don’t go as projected, it’s going to be longer to get paid.

    And finally, some companies do this because that’s what they learned to do, and it’s hard to change a persons work process. As artists, I’m sure the majority of all of you can understand that. You have your process to work effectively, and so do companies, because they people just like you.

    But guess what. You don’t have to always take what the company lays out in contract terms. If they say pay on publication, go back and ask to be paid on completion, or half up front, half on publication. Whatever you can live with, say something.

    If they really want your work, they may make an exception. If it’s your first time working for the company, you might want to wait before asking for pay on completion. See how the relationship between you and the company develops.

    Use diplomacy when doing so. Saying “It’s unfair to have to wait months for work I completed just to get paid my small amount.” You aren’t a child. Only children uses “unfair” as a reason why. You just as might as well say “I want my money now, BECAUSE.”

    When you act like a child, you turn people against you. If you want people to change, you have to have them on your side. Certainly telling them how they work is utter crap isn’t doing that.

    But before you do that. Do some research on the company and find out what you can. You are reading this on the internet, so you probably know how to Google. Look up their past products and talk to the freelancers that have worked for them in the past.

    If you don’t speak up about the terms of the contract, or educate yourself about new clients, you are going to end up screwed or frustrated, and then start demanding people change and do things your way, or else!

    The better options is educated freelancers who understand why things are done the way the are, and how a business works, and more importantly, why.

  11. I fully agree with you. As someone who can’t draw at all, it’s a bummer to hire someone to do my current children’s books BUT if I don’t believe enough in my work to pay a creative to make my images, then why should they believe in it too?

    An ethical person will pay up front.

    Now if it was me and a buddy and we came up with some idea like “let’s make a game” and he could draw and i had something I could contribute, then maybe that’s okay.

    But a professional endeavor needs to do the right thing – pay your talent!

    hmm, with the “pay on publication” approach, I wonder if I could get free food for a few years and once I win the Olympics and get TV endorsements, then I’ll pay for all that food . . .

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